Section 1.5          Negligence

A failure of duty of care towards a client may lead to a charge of negligence.

Negligent conduct is conduct which, in the opinion of the court, falls below an acceptable standard.  You are negligent if you fail to do something which a reasonable person would do, or you do something which a reasonable person would not do, and as a result, you cause harm to someone else.

For a worker to be found negligent, the case will be heard in a civil court because it is a matter of common law.  Many cases of negligence are settled out of court by the legal representatives (there are not many that involve community service workers).  The parties all agree on how much money will be paid to satisfy the plaintiff.

1.5.1   Principles of negligence

There are four key factors that are essential in deciding whether or not someone is negligent.
They are:

• duty of care;
• standard of care;
• breach of duty of care; and
• harm or loss.

1.5.2   Harm or loss

Harm or loss has to happen if someone is going to sue a worker for negligence.  A worker is only deemed legally liable if a client is injured whilst in their care; and/or if it can be proven that the worker has been negligent.  This depends on a number of factors, such as whether:

• the worker owed the client a duty of care;
• the injury suffered by the client was reasonably foreseeable;
• the worker failed to take reasonable care to prevent the injury from occurring; and
• the harm was a direct result of the breach of duty.

1.5.3   Duty of care checklist

• Assess the likelihood and extent of the foreseeable harm.
• Assess the likelihood and extent of the foreseeable benefit.
• Look for ways to minimise the risk of harm without sacrificing the benefits of the activity.
• Balance foreseeable harm against the benefit.

Some of the questions that you can ask yourself in determining your duty of care, as a worker, are:

• What rights exist here for the service user?
• What rights are at risk of being compromised or abused through the action that I do or do not take?
• What rights would be upheld?
• Are some of these rights in conflict or competition with one another?
• Can the different rights relevant to this situation all be upheld or must I make choices between them?
• If there is a conflict or tension between these rights then am I clear about why I am choosing to emphasise one rather than the other?
• Whose values are influencing my judgement—mine or the clients?
• To what extent am I involving the service user in balancing up these issues?